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Oregon Bulletin

July 1, 2012

Land Conservation and Development Department, Chapter 660

Rule Caption: Adopt, amend, and repeal rules governing Oregon’s implementation of Federal CZMA consistency requirements.

Adm. Order No.: LCDD 8-2012

Filed with Sec. of State: 6-15-2012

Certified to be Effective: 6-15-12

Notice Publication Date: 4-1-2012

Rules Adopted: 660-035-0005, 660-035-0015

Rules Amended: 660-035-0000, 660-035-0010, 660-035-0020, 660-035-0030, 660-035-0050, 660-035-0060, 660-035-0070

Rules Repealed: 660-035-0040, 660-035-0080

Subject: The federal Coastal Zone Management Act of 1972, as amended, contains a “federal consistency” provision that allows states with an approved coastal management program to review federal activities affecting coastal uses or resources. The Department of Land Conservation and Development (department) is Oregon’s designated coastal zone management agency, and administers Oregon’s federal consistency program. The department administers federal consistency reviews according to the federal requirements outlined in 15 CFR Part 930, and the corollary state rules in OAR chapter 660, division 35. The attached rule adoptions, amendments, and repeals update division 35 to reflect changes in federal requirements since the rule was last updated, and to clarify that the department will follow the requirements of 15 CFR Part 930 when performing consistency reviews.

Rules Coordinator: Casaria Tuttle—(503) 373-0050, ext. 322

660-035-0000

Purpose

This division establishes state procedures for implementing the federal consistency requirements of the federal Coastal Zone Management Act of 1972 (CZMA), as amended, section 307(c).

Stat. Auth.: ORS 197.040
Stats. Implemented: ORS 196.435
Hist.: LCDC 7-1988, f. & cert. ef. 9-29-88; LCDD 8-2012, f. & cert. ef. 6-15-12

660-035-0005

Conformance with Federal Consistency Review Rules

The CZMA provides a federal consistency requirement that allows states with an approved coastal management program to review federal actions affecting coastal uses or resources. Pursuant to ORS 196.435, the Department of Land Conservation and Development is Oregon’s designated coastal zone management agency and administers federal consistency reviews. In administering federal consistency reviews, the department will follow the federal requirements and procedures provided in 15 CFR Part 930. All references to 15 CFR Part 930 in this division are to the version that existed on May 11, 2012.

Stat. Auth.: ORS 197.040
Stats. Implemented: ORS 196.435
Hist.: LCDD 8-2012, f. & cert. ef. 6-15-12

660-035-0010

Definitions

As used in this division, the definitions at CZMA section 304, 15 CFR Part 930, ORS 196.405, and 197.015 apply, unless the context requires otherwise. Additionally, the following definitions apply:

(1) “Coastal Zone,” as defined in CZMA §304(1) and 15 CFR §930.11(e), specifically means the area lying between the State of Oregon border with the State of Washington on the north, to the State of Oregon border with the State of California on the south, seaward to the extent of the state’s jurisdiction as recognized by federal law, and inland to the crest of the Coast Range Mountains, excepting:

(a) The Umpqua River basin, where the coastal zone extends to Scottsburg;

(b) The Rogue River basin, where the coastal zone extends to Agness;

(c) The Columbia River basin, where the coastal zone extends to the downstream end of Puget Island; and

(d) Land the use of which is by law subject solely to the discretion of or which is held in trust by the Federal Government, its officers, or agents, which federal law excludes from the coastal zone.

NOTE: A map depicting the boundaries of Oregon’s coastal zone, but not depicting the excluded federal lands, is available from the department and on the coastal program website.

(2) “OCMP” means the Oregon Coastal Management Program described in ORS 196.425(1), which the federal Office of Ocean and Coastal Resource Management approved in 1977 and all federally approved amendments thereto.

[Publications: Publications referenced are available from the agency.]

Stat. Auth.: ORS 197.040
Stats. Implemented: ORS 196.435
Hist.: LCDC 7-1988, f. & cert. ef. 9-29-88; LCDD 8-2012, f. & cert. ef. 6-15-12

660-035-0015

Activities Subject to Review

The following types of federal actions are subject to federal consistency review:

(1) Proposed federal agency activities, including proposed federal development projects, which affect any coastal use or resource, pursuant to 15 CFR Part 930, Subpart C;

(2) Activities that affect any coastal use or resource and that require one or more federal licenses or permits identified on the federally-approved OCMP license and permit list developed pursuant to 15 CFR §930.53, or unlisted licenses or permits the department identifies through the process set forth in 15 CFR §930.54, pursuant to 15 CFR Part 930, Subpart D;

(3) Federal license or permit activities described in detail in outer continental shelf plans that affect any coastal use or resource, pursuant to 15 CFR Part 930, Subpart E; and

(4) Federal assistance to state and local governments, including special purpose districts and related public entities, for activities that affect any coastal use or resource, pursuant to 15 CFR Part 930, Subpart F.

Stat. Auth.: ORS 197.040
Stats. Implemented: ORS 196.435
Hist.: LCDD 8-2012, f. & cert. ef. 6-15-12

660-035-0020

Federal Consistency in the OCMP

(1) To initiate consistency review, the responsible party identified in 15 CFR Part 930 shall submit all required consistency determinations, consistency certifications, or applications for federal financial assistance to the department along with supporting information or necessary data and information required by 15 CFR Part 930 and, for 15 CFR Part 930, Subparts D, E and F, as augmented by OAR 660-035-0030 through 660-035-0070.

(2) The department will review activities for consistency with the federally-approved enforceable policies of the OCMP. The enforceable policies can be found generally within:

(a) The statewide planning goals;

(b) The applicable acknowledged city or county comprehensive plan and implementing land use regulations; and

(c) Selected state agency statutory and regulatory authorities governing any coastal use or resource.

(3) A person may contact the department for a list of federally-approved enforceable policies.

Stat. Auth.:ORS 197.040
Stats. Implemented: ORS 196.435
Hist.: LCDC 7-1988, f. & cert. ef. 9-29-88; LCDD 8-2012, f. & cert. ef. 6-15-12

660-035-0030

Consistency for Federal Agency Activities

(1) When reviewing a federal agency activity or development project for consistency to the maximum extent practicable with the enforceable policies of the OCMP, the department shall conform to the requirements and procedures provided in 15 CFR Part 930, Subpart C.

(2) For review of a consistency determination submitted by a federal agency for a federal agency activity or federal development project, the federal agency must submit to the department the information described in 15 CFR §930.39(a).

(a) Although 15 CFR §930.37 limits state authority to require National Environmental Policy Act (NEPA) documents for federal consistency review purposes, a federal agency may mutually agree with the department to rely on information contained in NEPA documents or other project documents to provide some of the comprehensive data and information sufficient to support the federal agency’s consistency statement under 15 CFR §930.39(a).

(b) A federal agency may elect to rely on information contained in NEPA documents or other project documents to demonstrate consistency to the maximum extent practicable with the enforceable policies of the OCMP. If relying on NEPA documents or other project documentation, the federal agency must clearly demonstrate how the materials support a finding of consistency with OCMP enforceable policies.

(3) The department shall provide for public participation consistent with the provisions of 15 CFR §930.42. The department will:

(a) Maintain a mailing list of interested parties;

(b) Notify interested parties when the department is reviewing federal agency activities or development projects for consistency with the OCMP; and

(c) Solicit comments that address the consistency of the proposed federal activity or development project with applicable elements of the OCMP.

(4) Evidence supporting consistency for a federal agency activity or development project: Federal agencies are not required to file applications for state and local permits and other authorizations unless required to do so by provisions of federal law other than the CZMA. However, federal agencies are required to demonstrate that the proposed activity is consistent to the maximum extent practicable with the applicable state and local enforceable policies underlying the permits. While federal agencies are not required to apply for state and local permits and other authorizations otherwise required by enforceable policies, where federal law authorizes a federal agency to do so the department will consider such applications when determining whether the federal activity or development project is consistent with the enforceable policies underlying the permit or authorization.

[Publications: Publications referenced are available from the agency.]

Stat. Auth.: ORS 197.040
Stats. Implemented: ORS 196.435
Hist.: LCDC 7-1988, f. & cert. ef. 9-29-88; LCDD 8-2012, f. & cert. ef. 6-15-12

660-035-0050

Consistency for Activities Requiring a Federal License or Permit

(1) When reviewing any consistency certification submitted by an applicant for a federal license or permit activity affecting any coastal use or resource for consistency with the enforceable policies of the OCMP, the department shall conform to the requirements and procedures provided in 15 CFR Part 930, Subpart D.

(2) For review of a federal license or permit application, an applicant must submit to the department a consistency certification and the necessary data and information described in 15 CFR §930.58(a).

(a) Copies of complete applications for permits that state and local governments require for the proposed activity are required as necessary data and information to begin the CZMA six-month review period. The department does not require issued state or local permits as necessary data or information to begin the six-month review. If at the end of the six-month review period the applicant has not obtained all required state and local permits:

(A) The department may object to the consistency certification as provided in 15 CFR §930.63, or

(B) The department and the applicant may enter into a written agreement to stay the CZMA review period to permit resolution of the remaining issues as provided in 15 CFR §930.60(b).

(b) To expedite the federal consistency review process, the department encourages applicants to obtain state and local permits and other authorizations required by enforceable policies before beginning the federal consistency review process.

(c) Draft NEPA documents are necessary data and information to begin the CZMA six-month review period except when a federal statute requires a federal agency to initiate CZMA consistency review prior to its completion of NEPA compliance.

(d) In cases where an applicant relies on draft NEPA documents to satisfy some of the necessary data and information requirements for federal consistency review under subsection (c), the department will not begin the federal consistency review period until the applicant submits the draft NEPA documents, together with all other required necessary data and information, to the department.

(e) An applicant must clearly demonstrate how draft NEPA or other project documentation materials support a finding of consistency with OCMP enforceable policies.

(3) The department shall provide for public participation consistent with the provisions of 15 CFR §930.61. The department will:

(a) Maintain a mailing list of interested parties;

(b) Notify interested parties when the department is reviewing a federally licensed or permitted activity for consistency with the OCMP. The department may issue joint public notices with the federal permitting or licensing agency; and

(c) Solicit comments that address the consistency of the proposed activity with applicable elements of the OCMP.

(4) Evidence supporting consistency for federal license or permit activities: For activities located within the state’s jurisdiction that require state or local permits or authorizations, the issued permit or authorization is the only acceptable evidence demonstrating consistency with the enforceable policies that the permit or authorization covers.

Stat. Auth.: ORS 183 & 197
Stats. Implemented: ORS 196.435 & 197.040
Hist.: LCDC 7-1988, f. & cert. ef. 9-29-88; LCDD 8-2012, f. & cert. ef. 6-15-12

660-035-0060

Consistency for Outer Continental Shelf (OCS) Activities

(1) When reviewing an outer continental shelf activity that requires an authorization from the U.S. Department of the Interior pursuant to the Outer Continental Shelf Lands Act (43 USC §§ 1331–1356(a) for consistency with the enforceable policies of the OCMP, the department shall conform to the requirements and procedures provided in 15 CFR Part 930, Subpart E.

(2) For review of an outer continental shelf activity, an applicant must submit to the Secretary of the Interior or designee a consistency certification and materials described in 15 CFR §930.76. The Secretary of the Interior or designee will furnish the department with a copy of the information.

(3) The department shall provide for public participation consistent with the provisions of 15 CFR §930.77. To do so, the department will follow the procedure set forth in OAR 660-035-0050(3)(a)–(c).

Stat. Auth.: ORS 197.040
Stats. Implemented: ORS 196.435
Hist.: LCDC 7-1988, f. & cert. ef. 9-29-88; LCDD 8-2012, f. & cert. ef. 6-15-12

660-035-0070

Consistency for Federal Assistance to State and Local Governments

(1) When reviewing applications for federal assistance to state and local governments for consistency with the enforceable policies of the OCMP, the department shall conform to the requirements and procedures provided in 15 CFR Part 930, Subpart F.

(2) For review of federal assistance to state and local governments, the applicant agency must submit to the department the materials described in 15 CFR §930.94.

(3) The department’s review period for consistency certifications for federal assistance to state and local governments shall be 60 days.

Stat. Auth.: ORS 197.040
Stats. Implemented: ORS 196.435
Hist.: LCDC 7-1988, f. & cert. ef. 9-29-88; LCDD 8-2012, f. & cert. ef. 6-15-12

 

Notes
1.) This online version of the OREGON BULLETIN is provided for convenience of reference and enhanced access. The official, record copy of this publication is contained in the original Administrative Orders and Rulemaking Notices filed with the Secretary of State, Archives Division. Discrepancies, if any, are satisfied in favor of the original versions. Use the OAR Revision Cumulative Index found in the Oregon Bulletin to access a numerical list of rulemaking actions after November 15, 2011.

2.) Copyright 2012 Oregon Secretary of State: Terms and Conditions of Use

Oregon Secretary of State • 136 State Capitol • Salem, OR 97310-0722
Phone: (503) 986-1523 • Fax: (503) 986-1616 • oregon.sos@state.or.us

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